In the context of students’ free speech rights, courts have traditionally premised school regulatory authority on geography, deferring to school officials on campus and limiting a school’s capacity to discipline students for conduct taking place beyond school hours or property. In the contemporary setting, however, where wireless devices, mobile phones, and other communicative technologies abound, a student may affect the school environment significantly without setting foot on school property. In the absence of guidance from the U.S. Supreme Court, the limits of school authority to regulate such “off-campus” student speech are uncertain.
Several courts have permitted school discipline in response to off-campus student speech under the “substantial disruption” test developed by the Supreme Court in Tinker v. Des Moines Independent Community School District. Responding to distinct situations, these courts have fashioned separate threshold tests to determine whether to apply the substantial disruption test to off-campus student speech. These threshold tests are inconsistent and risk either overly burdening students’ First Amendment rights or undermining a school’s ability to carry out its educational mission.
This Note argues that the threshold tests that courts have developed neither safeguard the rights of students nor meet the needs of schools adequately. By permitting schools to regulate off-campus student speech that may foreseeably reach school property or which bears a sufficient nexus to a school’s pedagogical interests, the Second and Fourth Circuit’s threshold tests fail to impose a meaningful limit on the kind or amount of speech that schools may regulate. On the other hand, by adopting a stricter threshold test based on identifiable threats of school violence, the Ninth Circuit’s standard may foreclose a school’s ability to protect students from other dangers. By instead redefining “substantial disruption” in accordance with the conception of student-on-student harassment that the Supreme Court has articulated in the Title IX context, courts might better serve schools’ regulatory interests while protecting students’ First Amendment rights in the digital age.
Tinker Gone Viral: Diverging Threshold Tests for Analyzing School Regulation of Off-Campus Digital Student Speech,
82 Fordham L. Rev. 3395
Available at: https://ir.lawnet.fordham.edu/flr/vol82/iss6/24